Tuesday, December 15, 2015

In the case of Human Rights Defender, Lena Hendry, she is alleged was involved in the the screening of a documentary "No Fire Zone: The
Killing Fields of Sri Lanka", which highlighted human rights violation in Sri Lanka.

On day one of her trial(14/12/2015), evidence was adduced by one the prosecution witness ( Omar Mohd Bahari, the
director of Film Censorship Control and Enforcement Division) was that the complainant was the Sri Lankan government

Does this not look like a 'retaliation' by the Sri Lankan government? possibly a retaliation to alleged human rights abuses contained in the said documentary which may implicate the then government?

Now, when the arrest was made, and Lena was charged, Malaysia may consider that they are not bound by the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (commonly known as the UN Declaration on Human Rights Defenders)...

But by 26/11/2015, things changed for Malaysia, when it together with 116 Member States voted yes on the resolution, entitled “Recognizing the
role of human rights defenders and the need for their protection,” In so doing, Malaysia also automatically accepted United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (commonly known as the UN Declaration on Human Rights Defenders).

Now,
what is Malaysia's obligation? Article 12 of the Declaration is most
clear...PROTECT THE HUMAN RIGHTS DEFENDER...and ALL NECESSARY MEASURES
need to be utilized...

2. The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats,retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.

3. In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms. - Article 12, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms

And
the measure that can and should be undertaken now must be the stop of
this trial. How can it be done? The public prosecutor has the relevant
power, and must agree to possible what is legally known as a 'Discharge
Not Amounting To An Acquital (DNAA)' - where the trial is discontinued,
or alternatively and better still an 'Acquittal'.

There
are 'bad laws' or old laws that have not taken into account the
recognition and protection of the Human Rights Defender - these will all
need to be amended or repealed, but for Lena Hendry - this may not be
that useful. It must be done..

We remember of 2 recent cases, where the Courts have used this ... see the following earlier post-

Case whereAcquittal was given, and this was not even a Human Rights Defender case -

There may have been earlier request to the Public Prosecutor to drop the charges, but this is a very NEW development that arises only after 26/11/2015...and,I am sure that Malaysia's new attorney-general Mohamed Apandi Ali, being also a former Federal Court judge, would do the right thing and drop the charge...taking note of Malaysia's new commitment to Human Rights Defenders..

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